Letting a ‘Sleeping’ Law Lie? The Case of Canada’s Blasphemy Law

Since the Criminal Code was first enacted in 1892 there has been a section banning blasphemous libel. Blasphemy is currently regarded as the act of showing contempt (or failing to display respect and reverence) for religious symbols or persons. It is well known that in countries like Pakistan, Bangladesh, Saudi Arabia and Afghanistan we view predominately faith-based governments, radically militarized organizations and individuals using the notion of blasphemy to denounce progressive legal reforms and “justify violent implementation of their dogmatic ideologies” (CFI Canada, n.d.). By their very design, blasphemy laws are contrary to the notion of secularism—in other words, the separation of religion from the state and laws which govern people. Through justifications that blasphemy allegedly hurts these entities’ religious sentiments, blasphemy laws effectively silence criticism or commentary and punish those individuals or groups attempting to progress healthy discussions around free speech. And while Canadians may express horror and shock that such laws are taken up in these parts of the world, they should be equally concerned with the law against ‘Blasphemous Libel’ found within our very own Criminal Code.

While human rights and freedoms are and generally upheld in Canada’s Constitution, the fact is that Canada’s blasphemy law, while generally unenforceable, remains on statue. For readers unfamiliar with the Canadian Constitution, the Canadian Charter of Rights and Freedoms is a bill of rights which details and protects “fundamental freedoms” (section 2) for all Canadians, including freedom of thought, conscience, belief, expression, religion, the press and of other media of communication; peaceful assembly, and association.

Despite multiple and substantial revisions to the Code and Charter challenges, Canada’s blasphemy law retains its place over 125 years later.

This law reads as follows:

296(1) Every one who publishes a blasphemous libel is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years.

(2) It is a question of fact whether or not any matter that is published is a blasphemous libel.

(3) No person shall be convicted of an offence under this section for expressing good faith and in decent language, or attempting to establish by argument used in good faith and conveyed in decent language, an opinion on a religious subject (R.S., c. C-34, s. 260).

Fortunately, there has been a de facto moratorium on the use of this law since the 1930s (End Blasphemy Laws, n.d.), coupled with a high probability that this law would be found unconstitutional if challenged in court. Unfortunately, until the law is used again (in which it has not been since the last published judicial decision including it some 80 years ago) the chances that courts would consider and be willing to repeal the law is left to uncertainty (Martino, 2015). To let this law remain on the books leaves an unsightly mark on Canada, a country which continues to fight to be more socially conscious, progressive and multicultural (as I have discussed in a prior blog-post about questioning Canada’s hate speech law).

As Martino (2015) indicates, from a legal perspective Canada’s blasphemy law is fundamentally flawed. There are two parts to every crime: (1) the forbidden act (actus reus); and (2) the guilty intent (mens rea). Yet when we examine section 296, the statute remains ambiguous if the forbidden act is the publication of publishing blasphemous libel. Furthermore, this law remains silent “on what the guilty intent must be: is it simply the intent to publish something that turns out to be blasphemous, or is it instead the intent to publish something already known to be blasphemous?” (Martino, 2015, p. 5)

So why should we care that this law remains? Here’s why: seemingly forgotten laws have a bad habit of springing back into existence, rearing their ugly heads and exacerbating legal situations surrounding free speech and alleged religious discrimination. A prohibition on blasphemy, by its very definition, is against the promotion of free speech, and by limiting discussion of religious subjects, it violates freedom of religion (Martino, 2015). Because section 296 historically protects and relates exclusively to Christianity (the Christian, colonial settler societies which have formed modern-day Canada), this blasphemy law violates the Charter’s guarantee of equality for all. Any argument in favour of an anti-blasphemy law stems from the notion that we should protect people from being offended—however, in a multicultural society such as Canada, this leaves the question of ‘who’ is to be protected? To certain extents, each religion (including atheism and humanism) blasphemes the next by declaring the untruths of the other and stating alternatives. Indeed, there will come a time when we will be forced to consider whether it is possible, under the law, to “protect atheists from the blasphemy that God exists while at the same time [protect] Christianity from the blasphemy that God does not” (Martino, 2015, p. 6). While this legal conundrum ensues, one fact is certain: Canada’s blasphemy law is “not dead, just sleeping”, and perpetuates both the potential to chill free expression about religion and poor international standards (Patrick, 2008).

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